Intellectual Property Books
The Fair-Use Statute
The following is the full text of the fair-use statute from the U.S. Copyright Act. Section 107 of the Copyright Act of 1976. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, political awareness, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
The Meaning of the Four Factors
While fair use is intended to apply to teaching, research, and other such activities, a crucial point is that an educational purpose alone does not make a use fair. The purpose of the use is, in fact, only one of four factors that users must analyze in order to conclude whether or not an activity is lawful.
Moreover, each of the factors is subject to interpretation as courts struggle to make sense of the law. Some interpretations, and their subsequent reconstruction by policy-makers and interest groups, have been especially problematic. For example, some copyright analysts have concluded that if a work being used is a commercial product, the “nature” factor weighs against fair use. By that measure, no clip from a feature film or copy from a trade book could survive that fair-use factor. Similarly, some commentators argue that if a license for the intended use is available from the copyright owner, the action will directly conflict with the market for licensing the original. Thus, the availability of a license will itself tip the “effect” factor against fair use. Neither of these simplistic constructions of fair use is a valid generalization, yet they are rooted in some truths under limited circumstances. Only one conclusion about the four factors is reliable: each situation must be evaluated in light of the specific facts presented.
The following are brief explanations of the four factors from the fair-use statute. All four factors which affect fair use must be taken into account before reaching a conclusion.
Purpose: Congress favored nonprofit educational uses over commercial uses. Copies used in education, but made or sold at monetary profit, may not be favored. Courts also favor uses that are “transformative” or that are not mere reproductions. Fair use is more likely when the copyrighted work is “transformed” into something new or of new utility, such as quotations incorporated into a paper, and perhaps pieces of a work mixed into a multimedia product for your own teaching needs or included in commentary or criticism of the original. For teaching purposes, however, multiple copies of some works are specifically allowed, even if not “transformative.” The Supreme Court underscored that conclusion by focusing on these key words in the statute: “including multiple copies for classroom use.”
Nature: This factor examines characteristics of the work being used. It does not refer to attributes of the work that one creates by exercising fair use. Many characteristics of a work can affect the application of fair use. For example, several recent court decisions have concluded that the unpublished “nature” of historical correspondence can weigh against fair use. The courts reasoned that copyright owners should have the right to determine the circumstances of “first publication.” The authorities are split, however, on whether a published work that is currently out of print should receive special treatment. Courts more readily favor the fair use of nonfiction rather than fiction. Commercial audiovisual works generally receive less fair use than do printed works. A consumable workbook will most certainly be subject to less fair use than a printed social science text.
Amount: Amount is both quantitatively and qualitatively measured. No exact measures of allowable quantity exist in the law. Quantity must be evaluated relative to the length of the entire original and the amount needed to serve a proper objective. One court has ruled that a journal article alone is an entire work; any copying of an entire work usually weighs heavily against fair use. Pictures generate serious controversies, because a user nearly always wants the full image or the full “amount.” A motion picture is also problematic because even short clips may borrow the most extraordinary or creative elements. One may also reproduce only a small portion of any work but still take “the heart of the work.” The “substantiality” concept is a qualitative measure that may weigh against fair use.
Effect: Effect on the market is perhaps even more complicated than the other three factors. Some courts have called it the most important factor, although such rhetoric is often difficult to validate. This factor fundamentally means that if you make a use for which a purchase of an original theoretically should have occurred-regardless of your personal willingness or ability to pay for such purchase-then this factor may weigh against fair use. “Effect” is closely linked to “purpose.” If your purpose is research or scholarship, market effect may be difficult to prove. If your purpose is commercial, then effect is presumed. Occasional quotations, photocopies from flatbed scanners, may have no adverse market effects, but reproductions of software and videotapes can make direct inroads on the potential markets for those works.
Weighing and Balancing the Factors: A central tenet of this analysis is that fair use is a flexible doctrine that Congress wanted us to test and adapt for changing needs and circumstances. The law provides no clear and direct answers about the scope of fair use and its meaning in specific situations. Instead, we are compelled to return to the four factors and reach creative and responsible conclusions about the lawfulness of our activities. People will always differ widely on the applicability of fair use, but any reliable evaluation of fair use must depend upon a reasoned analysis of the four factors of fair use. The four factors also need not lean in one direction. If most factors lean in favor of fair use, the activity is allowed; if most lean in the opposite direction, the action will not fit the fair-use exception and may require permission from the copyright owner.
Examples of Fair-Use Cases: While courts have ruled on many fair-use cases, few are directly related to higher education. Nevertheless, many cases do offer valuable guidance for the meaning of fair use at colleges and universities. Here is a sample of such cases, with an indication of how courts apply the four factors of fair use.
Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522 (S.D.N.Y. 1991)
Kinko’s was held to be infringing copyrights when it photocopied book chapters for sale to students as “coursepacks” for their university classes.
Purpose: When conducted by Kinko’s, the copying was for commercial purposes and not for educational purposes which might be the case if scanned and printed at home on a printer
Nature: Most of the works were factual — history, sociology, and other fields of study — a factor which weighed in favor of fair use.
Amount: The court analyzed the percentage of each work, finding that five to 25 percent of the original full book was excessive.
Effect: The court found a direct effect on the market for the books because the course- packs directly competed with the potential sales of the original books as assigned reading for the students.
Three of the four factors leaned against fair use. The court specifically refused to rule that all coursepacks are infringements, requiring instead that each item in the “anthology” be individually subject to fair-use scrutiny.
Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987)
In 1973, the plaintiff wrote a book based on interviews with women about their own pregnancies and abortions. The defendant wrote his own book on the same subject and sought permission to use lengthy excerpts from the plaintiff’s work. The plaintiff refused permission, and the defendant proceeded to publish his work with the unpermitted excerpts.
Purpose: Although defendant’s book was published by a commercial press with the possibility of monetary success, the main purpose of the book was to educate the public about abortion and about the author’s views.
Nature: The interviews were largely factual.
Amount: Quoting 4.3 percent of the plaintiff’s work was not excessive, and the verbatim passages were not necessarily central to the plaintiff’s market.
Effect: The court noted that the plaintiff’s work was out of print and not likely to appeal to the same readers. This case affirms that quotations in a subsequent work are permissible, sometimes even when they are lengthy. Implicit throughout the case is the fact that the plaintiff was unwilling to allow limited quotations in a book that argued an opposing view of abortion; thus, fair use became the only effective means for the second author to meaningfully build on the scholarly works of others.
Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y. 1982)
For-profit producers of educational motion pictures and videos sued a consortium of public school districts, which was systematically recording programs as they were broadcast on public television stations and providing copies of the recordings to member schools.
Purpose: The court was largely sympathetic
with the educational purpose.
Nature: Although the films had educational content, they were commercial products intended for sale to educational institutions.
Amount: The defendant was copying the entire work and retaining copies for as long as 10 years.
Effect: The copying directly competed with the plaintiff’s market for selling or licensing copies to schools. The court had little trouble concluding that the activities were not fair use.
American Geophysical Union v. Texaco Inc., 37 F.2d 881 (2d Cir. 1994), modified, 60 F.3d 913 (1995)
The court ruled that photocopying of individual journal articles by a Texaco scientist for his own research needs was not fair use. The court amended its opinion to limit the ruling to “systematic” copying that may advance the profit goals of the larger organization.
Purpose: While research is generally a favored purpose, the ultimate purpose was to strengthen Texaco’s corporate profits Moreover, exact photocopies are not “transformative”; they do not build on the existing work in a productive manner.
Nature: The articles were factual, which weighs in favor of fair use.
Amount: An article is an independent work, so copying the article is copying the entire copyrighted work.
Effect: The court found no evidence that Texaco reasonably would have purchased more subscriptions to the relevant journals, but the court did conclude that unpermitted photocopying directly competes with the ability of publishers to collect license fees. According to the court, the Copyright Clearance Center (CCC) provides a practical method for paying fees and securing permissions, so the copying directly undercuts the ability to pursue the market for licensing through the CCC.
Despite an impassioned dissent from one judge who argued for the realistic needs of researchers, the court found three of the four factors weighing against fair use in the corporate context.